CRL.REV.PET NO. 628 OF 2022
Sanil James Vs. State of Kerala and Anr.
DATE OF ORDER:
20 Septermber 2022
Justice A. Badharudeen
Petitioner: Sanil James
Respondent: State of Kerala & Anr.
This is a Revision Petition under Sections 397 and 401 of the Code of Criminal Procedure challenging the conviction and sentence imposed against the revision petitioner as per judgement dated 30.11.2019. The revision petitioner is the only defendant in S.T.No.723/2015 on the file of the Judicial First Class Magistrate-II, Pathanamthitta, and his conviction was upheld by the Additional Sessions Judge-III, Pathanamthitta, as per judgement in The State of Kerala, represented by the Public Prosecutor, and the first complainant before the trial court are the respondents in this revision petition.
Negotiable Instruments Act, 1881
- Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 8 a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.
Criminal Code of Procedure
- Section 357 - Order to pay compensation.- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied - (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.
- The complainant claimed that the accused borrowed Rs. 3,50,00,000 from the complainant as a loan and issued a check for the amount on March 2, 2014 with the promise that it would be cashed.
- However, the check was not honoured since there weren’t enough funds when it was given for collection. Even though the accused received and accepted a legal notice indicating dishonor and demanding the sum covered by the cheque, he chose not to pay it. In light of this, the complainant filed the lawsuit in accordance with Section 138 of the Negotiable Instruments Act.
- The trial court made sure the defendant was present for the hearing, and the testimony was documented. Exts. P1 to P7 were marked, and PW1 conducted an examination of the complainant.
- Although the accused had the chance to present defence evidence after being examined pursuant to Section 313(1) (b) of the Criminal Procedure Code, none was.
- While imposing sentence of imprisonment and fine, whether the Court has to order payment of compensation from the amount of fine as provided in Section 357(1)(b) of Cr.P.C?
- Even though the learned counsel representing the revision petitioner argued to overturn the concurrent judgments rendered by the trial court and the appellate court, he eventually conceded that the revision petitioner/accused would be satisfied with a sentence modification to one for a day until the court rose and payment of damages. He also said that the payment of the compensation could be delayed for up to 8 months.
- The court observed that the law is clear that the goal of the revision jurisdiction is to maintain the court’s ability to administer justice in accordance with the principles of criminal jurisprudence. As a result, it would not be appropriate for the High Court to reconsider the evidence and reach a different conclusion when the evidence had already been considered by the Magistrate and the Sessions Judge in the appeal, unless any obvious flaw is discovered which would tantamount to gross miscarriage of justice.
- In order to refute the presumptions, it is well-established in law that the accused may either present their own independent evidence or rely on the complainant’s evidence. It appears that the accused in the current instance did not present any proof. Though the issuance of a blank check and subsequent filling of the same were recommended during PW1's cross-examination, the complainant rejected the stated recommendations. Therefore, it was decided that the accused was properly convicted by the lower courts in accordance with Section 138 of the N.I Act.
- According to Section 357 (1)(b) of the Criminal Procedure Code, when a court sentences a person to a fine or a sentence in which a fine is a component, the court may, at the time it renders a decision, order payment of all or a portion of the fine as compensation for any loss or harm brought on by the offence, if the court determines that such compensation may be sought by the victim in a civil court. According to section 357(3) of the Criminal Procedure Code, when a court sentences someone to a term in which a fine does not count, the court may award compensation in the form of a monetary sum that may be specified in the order to the person who has suffered a loss or injury as a result of the act or as a result of the defendant receiving the sentence.
- For violations of Section 138 of the N.I. Act, the penalty includes either imprisonment for a term that may last up to two years, a fine that may last up to twice the amount, or both. As a result, when the court sentences someone to prison and a fine for a violation of Section 138 of the N.I. Act, the fine is included in the sentence. In these situations, the court must rule that the fine amount be deducted from the compensation due in accordance with Section 357(1)(b) of the Cr.P.C. The sentence may be changed in light of the situation.
As a result,
(i) this revision petition was partially granted;
(ii) both the trial court’s and the appellate court’s rulings on the conviction were upheld; and
(iii) the sentence was changed as follows:
(a) For the offence under Section 138 of the N.I. Act, the revision petitioner/accused must serve a single day of simple jail before the court rises, as well as pay a fine of Rs. 3,50,000-. (Rupees Three lakh fifty thousand only). The revision petitioner will spend a minimum of six months in default prison if the fine is not paid. According to Section 357(1)(b) of the Cr.P.C., the complainant will get a fine as compensation.
(b) The compensation will be paid six months from now, as requested by the defendant/revision petitioner.
(c) Therefore, it is mandated that the revision petitioner appear before the trial court on or before March 20, 2023 to receive the changed sentence and pay a fine. The trial court is ordered to execute the sentence in accordance with the law without fail if it is not already doing so.
(d) The sentence’s execution is postponed until March 19, 2023.
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